COURT TO TEST DEATH ROW APPEAL LIMITS

Jan Crawford Greenburg, Washington BureauCHICAGO TRIBUNE

For more than 13 years, Ellis Wayne Felker has resided on Death Row, awaiting execution for the rape and murder of a Georgia teenager.

He lost every appeal he filed, in state court and federal. But just before his scheduled execution Thursday night, he won a reprieve: The Supreme Court agreed to use his case to help determine the future of death penalty appeals.

The court, in an order released Friday, agreed to consider Felker's argument that a nine-day-old federal law designed to limit those appeals violated the Constitution.

In an unusual move, the court agreed to hear the case on an expedited basis, with arguments June 3 and a decision by the end of its term later that month.

Some legal experts speculated that the court's more conservative members wanted to quickly rule the new law constitutional so it would not percolate in the lower courts for months.

"It is unusual, to say the least . . . in a case of this importance," said Richard Dieter, executive director of the Death Penalty Information Center. "There's some danger that there's going to be a rush to get past this case."

Others said the case presented a narrow issue and would not encompass all of the law's death penalty appeals provisions, including specific time limits on filing challenges to the constitutionality of convictions.

The court's four most liberal members argued against granting review. Justice John Paul Stevens said it was "unnecessary and profoundly unwise" to decide the case so quickly. He urged "the utmost deliberation" instead. Stevens was joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The death penalty appeals provisions are included in an anti-terrorism bill President Clinton signed into law April 24.

At issue in Felker's case are provisions that require Death Row inmates to first get permission from a federal appeals court before they can challenge the constitutionality of their convictions a second time.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta refused to give Felker, 47, permission for a second appeal Thursday. They said he did not give good enough reasons for getting a second try.

Felker's lawyers said there is evidence that he did not attack the 19-year-old student. They also said another court subsequently had ruled unconstitutional the definition of reasonable doubt his jury received when he was convicted in 1983.

The state maintained that Felker could have argued about that in his first appeals.

Perry Michael, Georgia's executive assistant attorney general, said Friday that state officials were optimistic the court would find the new law constitutional.

"It was frustrating not to be able to proceed with the execution after 14 years," Michael said. "We're just hopeful we'll get a decision that will firmly establish new procedures in the new act."

Felker had just finished a prison sentence for rape when he was charged with murdering Evelyn Joy Ludlam in 1981, after luring her to his home by promising her a job.